Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 4089

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/4765)

KELVIN WAY PTY. LTD. AS TRUSTEE FOR MAUGERI (NO 2) FAMILY TRUST AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS SOLID PLASTERING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 28 NOVEMBER 2022

Application for approval of the KELVIN WAY PTY. LTD. AS TRUSTEE FOR MAUGERI (NO 2) FAMILY TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Solid Plastering Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the KELVIN WAY PTY. LTD. AS TRUSTEE FOR MAUGERI (NO 2) FAMILY TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Solid Plastering Enterprise Agreement 2020-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Construction, Forestry, Maritime, Mining and Energy Union. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Construction, Forestry, Maritime, Mining and Energy Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 December 2022. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application for the approval of the Subcontractors Solid Plastering Enterprise Agreement 2020-2023 between Kelvin Way Pty Ltd as trustee for the Maugeri (No 2) Family Trust and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The applicants sought the commission's approval of the agreement, which was to govern the terms and conditions of employment for solid plastering subcontractors in Victoria. The dispute arose over the specific terms of the agreement, and whether they complied with the requirements of the Fair Work Act 2009.

The primary legal issue before the commission was whether the agreement met the criteria for approval under section 232 of the Fair Work Act. The commission had to consider whether the agreement was a "simplified and flexible agreement", if it had been made in good faith, and if it was fair and reasonable in all the circumstances. The applicants argued that the agreement was a fair and reasonable document that provided for a simplified and flexible workplace, while the respondents raised concerns over certain provisions and their potential impact on employees.

In delivering its decision, the commission found that the agreement did meet the criteria for approval. The commission acknowledged the efforts made by the parties to create a simplified and flexible agreement that balanced the needs of both employers and employees. While some concerns were raised by the respondents, the commission determined that these did not outweigh the overall fairness and reasonableness of the agreement. The commission emphasised the importance of the agreement's provisions on dispute resolution, training, and the inclusion of a good faith bargaining clause.

The Fair Work Commission approved the Subcontractors Solid Plastering Enterprise Agreement 2020-2023. The approval was contingent on the agreement being registered with the commission and the parties taking steps to ensure that it was properly communicated to all affected employees. The commission's decision highlighted the importance of good faith bargaining and the creation of fair and reasonable agreements that balance the needs of all parties involved.

Construction, Forestry, Maritime, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established